Earnout Payments. (a) The Constituents shall be eligible to receive earnout consideration up to a maximum of three million dollars ($3,000,000) for all such earnout payments, based on the performance of the Surviving Corporation following the Closing as set forth in this Section 1.7.
(i) For the period beginning immediately after the Closing and ending on the first anniversary of the Closing (the “First Earnout Period”), the Constituents shall receive $3 for every $1 of Post-Closing Net Income in excess of one hundred ten percent (110%) of the Adjusted Forecast for such First Earnout Period (the “First Earnout Period Payment”).
(ii) For the period beginning on the day after the first anniversary of the Closing and ending on the second anniversary of the Closing (the “Second Earnout Period”), the Constituents shall receive $3 for every $1 of Post-Closing Net Income in excess of one hundred ten percent (110%) of the Adjusted Forecast for such Second Earnout Period until the Post-Closing Net Income results in an aggregate of $1.5 million of earnout consideration being earned during the Second Earnout Period (such amount of Post-Closing Net Income, the “Second Earnout Threshold”), at which point the amount earned thereafter shall change to $1.50 for every $1 of Post-Closing Net Income in excess of the Second Earnout Threshold for such Second Earnout Period (collectively, the “Second Earnout Period Payment”).
(b) Earnout amounts shall be calculated promtly after the preparation of the Parent’s financial statements following the accounting period in which the end of such earnout period occurs. The First Earnout Period Payment, if any, shall be deposited with Escrow Agent and made part of the Escrow Amount. The calculation of the amount earned in the First Earnout Period Payment or Second Earnout Period Payment, as the case may be, may be referred to as the “Earnout Payment” for such period. Such Earnout Payments shall be delivered to the Escrow Agent or paid to the Constituents in accordance with Section 1.5(a), as the case may be, within the later of (i) ninety (90) days after the Parent’s delivery to the Stockholder Representatives of the applicable Earnout Certificate, or (ii) if disputed pursuant to Section 1.7(f) below, ten (10) Business Days after final determination of the applicable Earnout Payment pursuant to the provisions of Section 1.7(f).
(c) [intentionally omitted]
(d) In no case shall the aggregate amounts paid pursuant to this Section 1.7 exceed $3 million.
(e) As...
Earnout Payments. (a) The terms below shall have the following respective meanings for the purposes of this Section 2.3:
Earnout Payments. (a) The Company Holders shall be entitled to an Earnout Payment with respect to each Earnout Period, payable solely in Earnout Shares, on or before each Earnout Payment Date, if (and only if) the Company’s Profit Adjusted Earnout Revenue for such Earnout Period (subject to Section 2.3(b) in the case of the First Earnout Period) is equal to or greater than the Minimum Earnout Revenue Target for such Earnout Period; such Earnout Payment to be calculated as follows:
(i) if Profit Adjusted Earnout Revenue in an Earnout Period is less than the Minimum Earnout Revenue Target for such Earnout Period, then the Company Holders shall not be entitled to an Earnout Payment with respect to such Earnout Period (subject to Section 2.3(b) in the case of the First Earnout Period).
(ii) if Profit Adjusted Earnout Revenue in an Earnout Period is equal to or greater than the Maximum Earnout Revenue Target for such Earnout Period, then the Company Holders shall be entitled to an Earnout Payment with respect to such Earnout Period equal to 100% of the Earnout Shares for such Earnout Period.
(iii) if Profit Adjusted Earnout Revenue in an Earnout Period is equal to or greater than the Minimum Earnout Revenue Target for such Earnout Period but less than the Maximum Earnout Revenue Target for such Earnout Period, then the Company Holders shall be entitled to an Earnout Payment with respect to such Earnout Period (subject to Section 2.3(b) in the case of the First Earnout Period) equal to the product of (x) the number of Earnout Shares for such Earnout Period multiplied by (y) the sum of (i) 0.33 and (ii) the product of 0.67 multiplied by a fraction, the numerator of which is the amount by which Profit Adjusted Earnout Revenue in such Earnout Period exceeds the Minimum Earnout Revenue Target for such Earnout Period and the denominator of which is the Earnout Spread for such Earnout Period.
(b) The Company Holders shall be entitled to a catch-up opportunity applicable to the Earnout Payment that the Company Holders may be entitled to receive for the First Earnout Period (if and only to the extent the full amount of Earnout Shares for the First Earnout period were not earned with respect to the First Earnout Period in accordance with Section 2.3(a)), which catch-up shall be calculated at the time of the calculation of the Earnout Payment for the Second Earnout Period as follows:
(i) if Profit Adjusted Earnout Revenue in the Second Earnout Period is less than or equal to $35,000,000, t...
Earnout Payments. (a) The Merger Consideration shall include, if earned, up to two additional payments (each, an “Earnout Payment”, and collectively, the “Earnout Payments”) based upon the Surviving Corporation’s Adjusted Earnings as follows:
Earnout Payments. (a) Buyer shall also pay to Seller, subject to the terms of this Section 2.9, earnout payments based on Net Sales as follows (provided that no earnout payment shall be due from Buyer to Seller for any Net Sales except as set forth in Sections 2.9(a)(i) and (ii) below):
(i) With respect to any Non-Spine Product, during the period commencing on the Closing Date and ending on the tenth anniversary of the Closing Date, an amount equal to 10% of Net Sales of such Non-Spine Product; and
(ii) during the period commencing on the Closing Date and ending on the date that no Valid Claims exist with respect to the Cervical Spine Products, an amount equal to 5% of Net Sales of Cervical Spine Products that are subject to Valid Claims.
(b) The earnout payments set forth in Section 2.9(a)(ii) shall be payable on a jurisdiction-by-jurisdiction basis, based on Net Sales in those jurisdictions where Valid Claims exist, and where, but for the sale, conveyance, assignment and transfer of the Medical Device Intellectual Property from Seller to Buyer pursuant to this Agreement, the ownership, design, development, manufacture, marketing or commercial exploitation by Buyer of the Medical Device Products would infringe such Valid Claims. In the event that third-party licenses or other payments to third parties are or would be required in order for Buyer to own, design, develop, manufacture, market or commercially exploit any Medical Device Products as they are currently designed, including, without limitation, any payments required to be made to Xxxxx Developments Limited pursuant to the Xxxxx Licence, then the earnout payments to be made under this Section 2.9 with respect to the Net Sales of a specific Medical Device Product in a specific jurisdiction shall be automatically reduced by the aggregate amount required to be paid to such third parties by Buyer with respect to sales of such Medical Device Product in such jurisdiction.
(c) Buyer shall pay the earnout payments set forth in Section 2.9(a) during the respective time periods provided therein within sixty (60) days following each six (6) month anniversary of the Closing Date for Net Sales in the previous six (6) month period. Each earnout payment under this Section 2.9 shall be accompanied by a statement of the amount of Net Sales during the applicable period and such other information as is necessary to determine the amount of the payments to be made to Seller hereunder. All earnout payments payable to Seller shall be paid ...
Earnout Payments. (a) For the period beginning on the Closing Date and lasting until the eighteen month anniversary of the Closing Date (the “Earnout Period”), Buyer shall pay to the Seller, at the end of each fiscal quarter, in accordance with this Section 2.07, an amount (each an “Earnout Payment” and together the “Earnout Payments”) calculated by multiplying the Total ClearStory Revenues for such period by 30%. Notwithstanding anything herein to the contrary, as relates to the first $750,000 in accrued Earnout Payments (“Initial Earnout Payment”), such Initial Earnout Payment shall be held-back by Buyer and shall not be paid until twelve months after the Closing Date (“Initial Earnout Due Date”); provided, however, that Buyer shall have the right to offset against such Initial Earnout Payment any Damages owed by Seller to the Buyer as and to the extent set forth in Article XI. After payment of any such Damages and resolution of any such unresolved claim, any amount of the Initial Earnout Payments remaining owed to the Seller with respect to such claim shall be promptly paid to Seller by the Buyer. For avoidance of doubt, the parties acknowledge and agree that only the Initial Earnout Payment shall be subject to Buyer’s right of offset as aforesaid and nothing in the immediately preceding sentence shall affect the timing of, or Seller’s right to receive, any Earnout Payment other than the Initial Earnout Payment.
Earnout Payments. The Company shall, and shall cause the Companies and their respective Affiliates to, comply with the terms and conditions of Section 1.7 of the Dakota Merger Agreement. The Company will act in good faith and not intentionally interfere or influence or otherwise take any action not in the ordinary course of business in such a way as to prevent or delay the payment of the Dakota Earnout, or cause such payment to be greater than the amount that would otherwise have been payable pursuant to Dakota Merger Agreement had the Company not taken such action. The Company hereby acknowledges its assumption of all of the obligations of Envoy relating to earnout payments under the CPS Merger Agreement.
Earnout Payments. After the Closing, subject to the terms and conditions set forth herein, the Sellers shall have the contingent right to receive up to an additional Four Million (4,000,000) shares of Pubco Common Stock with each such share valued at $10.00 per share (each an “Earnout Share”) (with such shares having an aggregate value of up to Forty Million Dollars ($40,000,000)), as consideration based on (i) Pubco and its Subsidiaries meeting certain financial milestones, during the calendar years 2023 and 2024 with respect to the EBITDA Earnout Targets (each such calendar year, an “EBITDA Earnout Year” and such two-year calendar period, the “EBITDA Earnout Period”), if the Adjusted EBITDA requirements as set forth in this Section 1.19 are met and (ii) the performance of the Pubco Common Stock during the five (5) year period after the Closing (the “Price Earnout Period”, and together with the EBITDA Earnout Period, the “Earnout Periods”).
(i) In the event that the Adjusted EBITDA for the calendar year ending December 31, 2023 (the “2023 Adjusted EBITDA”) is equal to or greater than Twenty Million Dollars ($20,000,000) (the “2023 EBITDA Earnout Target”) then, subject to the terms and conditions of this Agreement, the Sellers shall be entitled to receive One Million and Five Hundred Thousand (1,500,000) Earnout Shares having an aggregate value equal to Fifteen Million Dollars ($15,000,000) (the “2023 EBITDA Earnout Payment”), as additional consideration.
(ii) In the event that the Adjusted EBITDA for the calendar year ending December 31, 2024 (the “2024 Adjusted EBITDA”) is equal to or greater than Thirty Million Dollars ($30,000,000) (the “2024 EBITDA Earnout Target”, and together with the 2023 Earnout Target, the “Earnout Targets”) then, subject to the terms and conditions of this Agreement, the Sellers shall be entitled to receive One Million and Five Hundred Thousand (1,500,000) Earnout Shares having an aggregate value TABLE OF CONTENTS equal to Fifteen Million Dollars ($15,000,000) (the “2024 EBITDA Earnout Payment”, and together with the 2023 EBITDA Earnout Payment, the “EBITDA Earnout Payments”), as additional consideration. Notwithstanding the foregoing, (i) in the event that the 2023 EBITDA Earnout Target is not met for the 2023 calendar year but the 2024 EBITDA Earnout Target is met for calendar year 2024, then the Sellers shall be entitled to receive the 2023 EBITDA Earnout Payment under this Section 1.19 as if the 2023 EBITDA Earnout Target had been met in the ...
Earnout Payments. (a) Simultaneously with the delivery of the Earnout Calculation by Buyer to (i) the Representative, on behalf of the Sellers (other than Pentland), and (ii) Pentland for each Fiscal Year, Buyer will pay, by wire transfer to one or more accounts designated by (i) the Representative, with respect to the Sellers (other than Pentland), and (ii) Pentland, as applicable, the amount of the Earnout Payment shown on such Earnout Calculation for such Fiscal Year. In addition, within ten (10) days following the final and binding determination of any Earnout Payment pursuant to this Agreement, if the amount paid under the preceding sentence for a Fiscal Year is less than the Earnout Payment earned for such Fiscal Year, Buyer shall pay, by wire transfer to one or more accounts designated by (i) the Representative, with respect to the Sellers other than Pentland, and (ii) Pentland, as applicable, an amount equal to the shortfall, together with interest thereon from the date of delivery of the Earnout Calculation with respect to such Fiscal Year at the rate specified in Section 1.6(d) of the Purchase Agreement. Alternatively, if the amount paid under the first sentence of this Section 3.1 for a Fiscal Year is more than the Earnout Payment earned for such Fiscal Year, the Sellers, as applicable, shall pay, by wire transfer to one or more accounts designated by Buyer, an amount equal to the overpayment, together with interest thereon from the date of delivery of the Earnout Calculation with respect to such Fiscal Year at the rate specified in Section 1.6(d) of the Purchase Agreement.
(b) All amounts paid to the Representative under this Section, net of any third party, out-of-pocket costs incurred by the Representative in connection with the determination of the Earnout Payment, shall be distributed by the Representative to the Sellers (other than Pentland) in accordance with, and in the order of priority established by, Section 5.2 of the LLC Agreement (disregarding any Units held by Pentland).
Earnout Payments. 2.1 For each of the three (3) Earnout Years during the Term of this Agreement, Buyer shall calculate and pay an earnout payment (the “Earnout Payment”), as required pursuant to the terms and conditions of this Agreement.
2.2 Within thirty (30) days after the expiration of each Earnout Year during the Term of this Agreement, Buyer shall calculate the amount of the Earnout Payment payable to Seller for such Earnout Year according to the formula set forth below (the “Earnout Payment Formula”): [***]
2.3 For purposes of illustration only, the following is an example of how the Earnout Payment shall be calculated (all prices are $/barrel): [***]
2.4 On the thirtieth (30th) day after the expiration of each Earnout Year during the Term of this Agreement (each, a “Notice Date”), Buyer shall transmit to Seller (pursuant to the notice provisions hereof) a statement of Buyer’s calculation of the Earnout Payment using the Earnout Payment Formula in reasonable detail such that Seller can confirm the method of calculation. Such notice shall be transmitted regardless of whether the Earnout Payment is a positive or negative amount.
2.5 If the Earnout Payment is a positive amount, Buyer shall pay to Seller the amount of the Earnout Payment within seven (7) days of the Notice Date for the relevant Earnout Year (each, a “Due Date”) in immediately available U.S. funds, by wire transfer to the following account: [***] or to such other U.S. Bank account as may hereafter be designated by Seller in writing. Each Earnout Payment shall be made without offset, setoff, counterclaim or deduction of
